The Foundation for National Renewal
  Working for a better Australia through constitutional reform

The Constitutional Convention of February 1998

A missed opportunity for much-needed reform.

TRANSCRIPT OF PROCEEDINGS
Monday, 9 February 1998
Page 3

ISSUE: Preamble

Dr DAVID MITCHELL- Mr Chairman, while I see no reason for change to the present preamble, it is very important for the Convention to understand the place of the preamble in the Constitution. The preamble is not part of the Constitution. The preamble is a preamble to an act of parliament. It is a preamble to an act of the British parliament, an act which has become part of Australian law.

Amendments to the Constitution must be by referendum under section 128 of the Constitution. Section 128 of the Constitution does not apply to the preamble or to what are called the covering clauses or the sections of the act of the British parliament. So, as we are talking about the preamble, we need urgently to appreciate that any referendum that is held in relation to the preamble and the covering clauses will not be a referendum under section 128.

It was the people of all the states who agreed together to ask the United Kingdom parliament to pass the act of which our Constitution is a schedule. It must be a majority of people of all the states- whatever might be the case with regard to amendments to the Constitution- who approve any change to the preamble or to what are called the covering clauses.

I personally see no need for change to any aspect. The covering clauses, many of you will say- and you may well be right- are purely historical and have no present application today. If we are recommending change to the preamble we must also recommend change to the covering clauses. It is in the covering clauses that we would find matters like the section 44 qualifications for members of parliament extended to the Governor-General. We could change the preamble and the covering clauses without in any way affecting the Constitution.

I will later in the day be drawing attention to an amendment that I have proposed to a resolution relating to the preamble. You have in your hands a copy of my proposed amendment. I ask you to note that there are two typographical errors. The word `almighty' in the early part and the word `almighty' further on should be with a capital `A'. As you look at this proposed amendment, which I will be addressing you on later, please do not miss the acrostic. The acrostic, I believe, is an important part of it and should be included in the preamble.

My comment for this Convention is that the preamble is often thought of simply as referring to the blessing of Almighty God. While we must retain in the preamble a statement that this nation relies on the blessing of Almighty God, we need to understand also that there is much more in the preamble than simply a reference to that blessing of Almighty God.

You will see, as you look at the existing preamble and the existing covering clauses, that as a historical statement there is nothing wrong with them. I would urge every member of this Convention to become conversant with the present preamble and the covering clauses before considering any amendments this afternoon. After speaking to many members of the Convention, I have been surprised, indeed shocked, to learn that there are some who do not understand the place of the preamble or the covering clauses.

Ms DELAHUNTY- Mr Chairman and fellow delegates. I thank Dr Mitchell for his contribution- his constitutional law lecture- but I would like to change the mood a little bit because we gather here this morning to discuss the preamble. I would like to describe it as the welcoming mat of the Constitution. If it is the welcoming mat of the Constitution, it is very important that we treat it not just as a quick spot to wipe our boots before we rush into the unwelcoming clauses of a legal document. Delegates, the preamble offers us an opportunity to tarry for a minute, to reflect on the story of Australia, the continuing narrative of our nation. It is a chance to look at the overarching values that unite us- and there are many that unite us, many more than could ever tear us apart- and a chance to look at the aspirations that we have for the future of our nation.

`We could not get agreement on all that,' the pessimists cry. Delegates, do not believe it. Do not believe that we will be defeated on this before we even start. Let me give you an example already of consensus in this area of the preamble. We should note the plain good sense and the sense of fairness that was exhibited in all four working groups on this preamble. All four working groups decided that they wished to include in any new preamble recognition of the occupancy and custodianship of Australia's indigenous people. All four agreed on that, yet some weeks ago there were dark mutterings hinting that such an inclusion would be a challenge for this Constitutional Convention.

Clearly delegates at this Convention believe in the notion of a fair go. Why then must this preamble to a republican Constitution produce a truly welcoming welcome mat? The answer lies in the damaged state of our civic culture. As I said days ago, citizens feel shut out from the political process and we heard eloquently from Christine Milne about the results of that. Civics is not a sexy subject in Australia today. The study of the rights and duties of citizenship has slipped off the syllabuses in our schools- a generation ago it slipped off- and we are all the poorer for its passing. This will begin to change as civics is reintroduced into our school curriculums I believe next year.

But we do know that our Constitution has been- and probably still is- something of a mystery to many Australians, although I believe that the campaign for this Convention, the discussion and the interest shown in this Convention since it has got under way, have illuminated some of the dark corners of the document. It has certainly engaged many in the possibility of our task. I believe that an explicable preamble will be a very good start in inviting citizens back into this fairly dry document of government and then, hopefully, on with an interest in the way the political system actually works.

My sense today is of broad agreement around the corridors of this place on an explicable user-friendly preamble. The central schism lies between those who want to go for broke with the poetry of shared values and aspirations- and that is clearly my natural inclination- and those who caution us that trying to insert some form of civil rights values, if you like, into the preamble would invite the courts to use these values in Constitutional interpretation.

Both these views are valid and passionately held. Yet what both camps share is an absolute determination to make the preamble a plus in the referendum and not a way of scuttling the yes vote for a republic. The preamble must bring the disinterested on board, but it must not open the opportunity to the dark forces to mount a nasty anti-civil rights campaign against the republic vote in the referendum.

Mr Chairman, delegates can reach agreement on this. We have shown it already. Let the principles of a strong civic culture go forward to the enabling bill and let the principles and values we share be incorporated in a legally acceptable fashion. And then let the people vote yes for a republic. Let's not miss this chance to spell out what we value in Australian public life.

Prof. CRAVEN- Mr Chairman, let me begin with a narrow but useful technical point. It makes no sense to amend the existing preamble because a preamble in law is a statement of intention of the legislature that passed the relevant act when it was made. We can no more amend the intention of the founding fathers or the intention of the imperial statesmen of the time than we can fly to the moon. It would be inelegant to do so. What we can do is extend the preamble with, if you like, an added-on version of it, or put another preamble at the beginning of the Constitution proper. Both those causes would get around the problems in relation to the covering clauses mentioned by Dr Mitchell.

The crucial issue in relation to the preamble is not a technical one; it is a very substantive constitutional and political one, and that is the attitude of courts to preambles. Because that attitude is changing. Our courts traditionally have been fairly narrow in relation to preambles and generally have not been prone to extrapolate vast and vague doctrines out of constitutions in Australia. As we all know, it is a matter of public controversy that courts have so begun to do, with the result that the insertion of vague terms like `equality', `democracy' and `freedom' in a preamble would almost certainly encourage the courts to take those values throughout the Constitution as if they were substantive and controlling values.

As I said, I think on the first day of this Convention, preambles are in that sense like lymph glands- they can pump values throughout constitutions. This is why some people are really very fond of preambles- because you can put vague statements in them without having to spell out what they mean and then they can sit ticking like time bombs until eventually they explode.

It is not a question of whether you like the values of equality or democracy. We all like the values of equality and democracy. The issue is: do you want matters concerning those issues to be decided by elected parliaments or by courts? You should have absolutely no illusions that even a harmless term like `equality' could effect substantive, varied and unlooked-for changes in a Constitution and have effects on electoral laws, legislation dealing with courts, with legal aid, local government laws and laws dealing with resource allocation. All of these values that we have seen have these problems. Perhaps the most fundamental point for the republicans in the chamber is this- that the political consequences of these abstract values for a republic are truly disastrous.

Some of us here remember the 1988 campaign on a Bill of Rights. An extravagant preamble, as some of the preambles proposed are, would in effect insert something that could be claimed to be a miniature Bill of Rights in the Constitution, and it would be opposed on precisely that basis by precisely those forces who defeated the Bill of Rights proposal in 1988 by a majority of 70 per cent. It would be a fatal 70 per cent course for republicans to adopt.

The general principle is that the preamble should recite statements of fact- euphonic, useful and uniting statements of fact. I agree with Ms Delahunty on that point- that the preamble should be a thing that is worth reading. It can recite our federal system of government, our parliamentary system of government, prior occupation by indigenous people. It can acknowledge a certain degree of gratitude for the Crown and it can recite our gladness, if we are glad and if we do convert to a republic, at that conversion. But it should not contain those statements of abstract values which will lead to grave difficulty later on.

I believe it is a fundamental point that this extravagance- this quite understandable idea to have a readable and euphonic preamble- could lead us into a course that would gravely compromise this Convention and the achievement of a republic. You will have seen an amendment in my name that tries to avoid these difficulties coming to pass. I commend that course to this Convention.

Ms DORAN- It is a great honour to speak to this Convention and to do so on behalf of the ACTU and its affiliated unions and the 2.5 million working men and women of Australia that we represent. The ACTU has had a formal policy of support for an Australian republic since our congress of 1993. In that context, we have also supported a revised preamble to our Constitution. We do so because we agree with the Republic Advisory Committee report's statement that the current preamble lacks a comprehensive statement about the political and social values which underlie the political system. That committee noted that should we not change the preamble at the same time we move to republic, it could be seen as leaving an anachronistic and misleading introduction to the Constitution.

It is gratifying that in these circumstances each of the working groups, as Mary has said, dealing with this issue has supported a revised preamble. It is also gratifying that there appears to be a significant consensus between the different groups at this Convention as to what should be included in such a revised preamble. Working Groups 1, 2, 3 and 4 and Professor Craven's proposed amendment support recognising in the preamble the prior occupancy by Australia's indigenous people. The ACTU has always strongly supported that principle being included in any constitutional change. In doing so, I think we reflect the views of our community.

As Paul Kelly said in the Australian in December 1996, this is a moral imperative given the historical record. That historical record includes inappropriate and demeaning references to Australia's indigenous Australians in our original Constitution and, of course, the historic 1969 referendum at which the Australian people endorsed a very different approach to our indigenous Australians. There also appears to be general consensus that there should be some reference to our representative parliamentary system of government. That is also in all of the working group reports and Professor Craven's proposed amendment.

The ACTU also strongly supports the inclusion of basic civil values in the preamble for the reasons outlined by Mary Delahunty in terms of attaching people to our Constitution and making our Constitution a more reflective document in terms of the community, which is expected to give adherence to it and support it. That inclusion of basic civil values is clearly supported by a majority of Working Group 1 and clearly supported by Working Group 4.

We favour reference to the rule of law, to equality and encompassed in that the principle of non-discrimination. We support inclusion of a reference to Australia's cultural diversity and respect for the land and the environment. We support the approach of Working Group 1 in terms of not seeking to have this Convention clearly articulating in particular detail how those principles should be set out.

I would suggest that this group of issues would command strong support in the Australian community. Professor Craven's amendment in his speech to delegates this morning seeks to ensure that any new preamble should not contain statements about abstract values for the reasons he has given. I would ask delegates to question why we, amongst all the nations of the world, cannot afford to do so. If we want the preamble to promote ownership of and attachment to our Constitution, we need to make it aspirational, inclusive and reflective of a community consensus. That was the view of delegates to a Constitutional Convention conducted by the Constitutional Centenary Foundation which I attended in Adelaide in 1997. I believe that that is the view of the majority of the members of our community.

Let me give three brief examples of preambles in countries that have drafted new constitutions relatively recently. Those countries had no difficulties with seeking to have an aspirational preamble and they did not seem to be frightened of the adverse consequences that have been raised by Professor Craven. The Czech Republic, which has moved to a new constitution, says in its preamble:

We, the citizens of the Czech Republic in Bohemia, Moravia and Silesia, . . . resolved to build, protect and develop the Czech Republic in the spirit of the inviolable values of human dignity and freedom, as the home of equal and free citizens . . . 

The Republic of South Africa's, which we have heard a lot about, says:

We, the people of South Africa, . . .

Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

It also talks about improving the quality of life of its citizens. Delegates, I do not think it is beyond us to include in a revised Australian republican Constitution an aspirational and inclusive preamble that attaches ordinary people to the document.

Ms THOMPSON- Delegates, as we discuss the preamble this morning I ask you to reflect upon what we are doing here. Is it denigrating our past, as Christine Ferguson said this morning? Is it diverting our attention from the more important matters which face the Australian community, as Major General James said this morning? No, it is not. This is about our future, our vision, our hopes, our dreams and our aspirations as Australian citizens.

The week before now, when I was travelling over here from Western Australia, I stopped off in Adelaide and had coffee with my parents. They gave me a book 1901: Our Future's Past as a gift before I came to the Convention. I commend it to you all. My constitutional monarchist father wrote the following in the front:

May you build a brave New World with Huxley- and make Australia A land fit for Heroes- as Lloyd George didn't. But remember as the Irishmen said: "where have you come from?- I can't tell you how to get there if I don't know where you came from.

As we stand here on the precipice of the new millennium debating our future on the traditional land of the Ngunnawal people, our challenge is to acknowledge accurately our past, affirm positively our present and build a future for all of our people. I love this sunburnt country, and I want a preamble that does all three of those things. I want a statement of our collective vision, our hopes, our aspirations and our unique and important history. This is a preamble that we can all aim for.

I challenge us all to agree with this. I challenge us all to agree on the fundamental parts of that preamble which, in my mind, include an acknowledgment of the Aboriginal and Torres Strait Islanders' contribution to our nationhood, equality, fairness, and our system of democracy. I challenge those who want no change to agree particularly with the acknowledgment of the Aboriginal and Torres Strait Islander occupation of this land- no ifs, no buts, no maybes and no scare campaigns during the referendum. Let our preamble be an inspiration for future generations to look back upon our history, to learn from it, to build on it and to make Australia truly a land fit for heroines.

Mr GROGAN- Mr Chairman, delegates and our friends in the gallery, as the Governor-General reminded us last week, this Convention is a truly unique gathering made up of Australians who all want the best for our country, and the preamble is a topic which allows us to move away from the necessary technical legal debates into the field of who we are as Australians and who we want to be as a people. It is pleasing that since day one of this Convention the likelihood of this Convention reaching agreement on a new preamble has increased, largely due to the efforts of a number of monarchists who want to make clear their support for fairness in this area.

As delegates, we should take note of the concerns raised by Professor Craven and others about the possible legal consequences of some changes to the preamble. Like many delegates, I do not share that level of concern and I am against dealing with the concerns by inserting a phrase in the preamble directing the judiciary not to employ the preamble in constitutional interpretation. With respect, the Australian people will not look kindly on a suggestion that we should include in the preamble important values for our society only to say in the next breath that we do not really want to take those values seriously. And, with all due respect to Professor Craven, I do not agree that the proposed preambles are extravagant. How can it be extravagant to express our support in Australia today for basic human rights?

The concerns raised by Professor Craven can be met in other ways. The first is that we should not endeavour to resolve the final word by word make-up of the preamble here at the Convention. We as a Convention should name the matters we believe should be addressed in a modernised preamble. Like any referendum, the enabling bill must go through both houses of parliament. In the drafting stage we can be confident that the bill and the proposed preamble amendments will receive thorough legal attention, particularly with regard to any issues regarding unintended legal consequences of the preamble amendment.

Further, have no doubt, friends, that there will be debate on this matter in the parliament and that elected representatives representing Australians with concerns like those of Professor Craven will put their case strongly after consideration of the matter by Parliamentary Counsel. Therefore, delegates, if we follow this approach there is no reason why all delegates should not be able to vote for the two other draft preambles going forward for further discussion by the Resolutions Group. Any outcome from that group will come back to the Convention floor.

Friends, a modern, fairer and uplifting preamble will help bring us together as a nation. We should not underestimate the importance of agreeing on a preamble which will help bring us together if the Australian people are to make a favourable judgment of our work here over these two weeks.

On the few occasions we have been able to agree in this chamber, such as the vote on retaining the name of Commonwealth of Australia, delegates experienced the genuine good feeling when a group who have different views on many things come together and agree on an issue that is important to us all. The Australian people saw that agreement on television and in the other media. Friends, if we can achieve the same result at this Convention in relation to the preamble, then it will be a substantial moment in the history of our nation and one of which we as delegates can be proud.

Dr COCCHIARO- Delegates, I think the preamble is very important. As Peter said, it can unite us all in the aspirations and presentation of our country. Obviously we will arrive at some hybrid, as we usually do, of the working groups. I would like to just go through the preamble.

I have broken down the different sections of the preamble. I agree that it should start with `a higher power', an acknowledgment of the blessing of God and perhaps also spirituality and humanity. I am a Christian who would definitely like to see the blessing of God, but we have to recognise fully the diversity of our country. We do, after all, have an affirmation for higher positions. I think we should go on to something like `We, the people of Australia, give ourselves this Constitution', acknowledging the sovereignty of the people of Australia in the new republic.

We should mention historical facts- something like `We recognise the Aboriginal peoples and Torres Strait Islanders as our indigenous peoples'. I think that is a clear recognition and has received, as everybody has said, extremely wide support.

We should historically recognise the states- something like: `We, the people of New South Wales, Victoria, South Australia, Queensland, Tasmania and Western Australia, together with all the territories, having united in one indissoluble federal Commonwealth of Australia under the Crown of the United Kingdom of Great Britain and Ireland'. That is a historical fact and is something that should be stated. Perhaps the Northern Territory could be established as a state before the referendum and then we could include it.

Then we must look in the preamble at the present situation, and the clear, outstanding thing is that we will have evolved into an independent federal republic. This is the crux of the matter and is self-explanatory. Another statement of the present situation: `We are a culturally diverse, but united and cohesive nation of citizens who have come from every corner of the globe to join with the indigenous inhabitants.' This is a very important statement of today's reality and we must acknowledge it. We are culturally diverse and we did come to join the indigenous peoples inhabitants from every corner of the globe.

I believe that we should finish with an aspiring phrase- something that reflects core values. I have taken notice of Professor Craven and agree that the parliaments not the courts should decide these things, so I would certainly like some input on how to phrase it in a way that does not create any legal confusion. What I would like to see is something like: `We recognise and value the rule of law, mutual respect and tolerance', and also something like: `Our nation dedicates itself to a responsible and representative system of parliamentary democracy that is inclusive of all its peoples, upholds fundamental human rights, respects and cherishes cultural diversity and protects the land and indigenous heritage'. I think protection of the land and indigenous heritage is very important, as are all the other facets of this preamble. I expect that we will come to something that we all agree with and it will be something unifying.

Ms SCOTT- Delegates, fellow Australians, I am a member of Working Group 1. Professor Craven was in our group and, as he has told you, he argued for minimal change. I understand his position and do not ignore concerns about possible rulings by the High Court. Yet it is significant that, despite Professor Craven's articulate repetition of these concerns, he was unable to convince a clear majority of our group. Member after member spoke in favour of a new preamble, one that includes mention of values or, as the RAC report suggests, a preamble that embodies the fundamental sentiments which Australians of all origins hold common.

This was despite the fact that our group crossed the monarchist/republican elected appointed boundaries- something that I noticed also happened in group 3. So it appears that this is one issue at the Convention that has attracted broad support- and so it should. If the peoples of countries like Germany, India, Ireland, the US and South Africa can work together to produce such preambles then so too can the people of Australia. I am attracted by South Africa's preamble which says:

We, the people of South Africa,

Recognise the injustices of our past;

Honour those who have suffered for justice and freedom in our land;

Respect those who have worked to build and develop our country; and

Believe that South Africa belongs to all who live in it, united in our diversity.

This preamble goes on to pledge to heal the divisions of the past, to lay the foundations for a democratic and open society, to improve the quality of life of all of its citizens and then calls on God to protect its people.

Yet I recognise that our preamble will be necessarily different, that our move to a republic is the result of a gradual transition from colonialism to unambiguous independence and not recent revolution and bloodshed. We have a different history and a very different preamble already in place. For that reason, I agree that any new preamble should build on the old, recognising the arrangements made in the move to federation. For that reason, I could not support omission of mention of the states, believing that to do so would deny our history and our reality.

We did not discuss the issue of Working Group 2, that is, the retention of the words `humbly relying on the blessing of Almighty God'. My personal preference is for words closer to those suggested by Christine Milne, but Archbishop Hollingworth's subsequent explanation persuades me to accept the recommendations from that group.

Similarly, we recognise that Working Group 3 would provide recommendations regarding recognition of indigenous people as prior custodians of Australia. This idea gained wide support in our group. Although I recognise the legal implications of such a decision, we cannot walk away from it. I notice that the reports from all of the working groups on the preamble appear to have reached the same conclusion as ours: that is, that in two weeks it would be impossible for us to come up with an agreed final set of words. I believe that this Convention should, rather, forward a set of principles to the Prime Minister and government, relying on its drafters to develop a final preamble which meets those expectations.

For that reason, we place before this Convention an amended version of Professor Winterton's draft preamble. I recognise that some delegates will believe this type of preamble too cautious and unpoetic; one delegate considered the language daggy. I emphasise that I do not bestow any particular legitimacy on this draft but merely believe it gives a guide to what might work. It does build on the old preamble, it recognises prior custodianship by indigenous people and it strongly favours recognition of basic civil rights.

Each of the resolutions before us today has some merits and difficulties. For example, I have some concerns with the notion of a second referendum as raised by group 3. Yet, for every difficulty, a broader preamble also provides some wonderful possibilities. Australians who fear that what we hold dear is in danger of being swamped by change can be reassured by a statement of our core values, just as new Australians and young people can look to these statements for guidance about the values of most importance to our people. Finally, a broader preamble goes some way towards reconciling us with our indigenous people. I therefore ask delegates to forward to the Resolutions Group the recommendations of all four working groups.

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Last updated: 21 October 2000